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 Flawed
enforcement of court decisions undermines the trust in State justice
[31/08/09] Court decisions in several
European countries are often enforced only partly or with long delay
- or sometimes not at all. This is one of the most frequent problems
identified by the European Court of Human Rights (the Strasbourg
Court). Flawed execution of final court decisions must be seen as a
refusal to accept the rule of law and is a serious human rights
problem.
The non-enforcement of court judgments can
affect large groups of the population and particularly vulnerable
groups. When State authorities ignore judicial decisions that social
benefits - such as pensions or child allowances - should be paid,
this can have profound consequences for all the family involved.
Other examples concern compensation for damage sustained during
military service or after wrongful prosecution. A high number of
non-executed decisions which have been brought to the Strasbourg
Court relate to the return of property which was nationalized by
former communist governments.
A great number of other cases of non-enforcement of domestic
judicial decisions are also raised among the complaints to the
Strasbourg Court - which has found and continue to find numerous
violations in this area. Among the countries with cases have been
Albania, Bosnia and Herzogovina, Moldova, Russian Federation, Serbia
and Ukraine.
Indeed, the flawed response to domestic judicial decisions in
several countries must be regarded as a structural problem which
should require the national authorities to take priority action.
It is an important principle that every judgment is enforced,
including those delivered against the governmental administration.
Therefore, it is particularly worrying that even political
decision-makers at high levels sometimes tend to seek all kinds of
pretexts to disregard judicial decisions and make public statements
that convey a lack of respect for the judiciary.
It has to be made clear that the non-execution of court judgments by
the authorities constitutes a breach of the right to a fair trial as
defined in Article 6 of the European Convention on Human Rights. In
its judgment in the case of Hornsby v. Greece the Strasbourg Court
affirmed that the "right to a court […] would be illusory if a
Contracting State's domestic legal system allowed a final, binding
judicial decision to remain inoperative to the detriment of one
party.”1
The Court observed also that the States by ratifying the Convention
had undertaken to respect the principle of the rule of law. To
ignore the implementation of judicial decisions would be
incompatible with this principle. Where administrative authorities
refuse or fail to comply, or even delay doing so, the guarantees
under Article 6 are rendered devoid of purpose.
The complexity of the domestic enforcement procedure or of the State
budgetary system cannot relieve the State of its obligation to
guarantee to everyone the right to have a binding judicial decision
enforced within a reasonable time, stated the Court. Nor is it open
to a State authority to cite the lack of funds or other resources as
an excuse for not honoring a judgment debt.2
Several Council of Europe bodies have focused on these structural
problems. This has been a focus of attention for the Parliamentary
Assembly or for specialised organs such as the European Commission
for the Efficiency of Justice (CEPEJ) and a priority for the
Committee of Ministers in the framework of the execution the
judgments of the European Court of Human Rights.
The Council of Europe has a special Department which assists the
Committee of Ministers in the supervision of the execution of the
judgments of the European Court. This Department has also organised
discussions to address the problem of delayed or lacking action on
domestic court decisions.3
The conclusions drawn have stressed the need of a legal and
regulatory framework which will ensure enforcement of the domestic
court decisions:
-
There should be clear procedures adapted to
national budgetary contexts that are compatible with the need
for rapid and proper execution of judgments;
-
An effective and independent bailiffs’
service should be established;
-
The responsibility of the relevant national
officials should be increased with regard to the execution
process for domestic judgments, both by increasing their
personal responsibility and through stricter control over their
actions;
-
There should be effective domestic remedies
to accelerate execution proceedings and compensation in cases of
non-execution should be made available.
This last requirement is essential. In a recent pilot judgment the
Strasbourg Court further specified the requirements and the criteria
for efforts to verify the effectiveness of preventive or
compensatory remedies that allow for adequate and sufficient redress
at domestic level.4
In fact, a number of measures have been taken by several countries
in this direction. Progress is under way through action plans or
national strategies, reforms of the bailiffs systems, new laws
introducing remedies, enforcement mechanisms set up for instance by
both the Supreme Court and the Council of State.
It is clear, however, that for all these efforts to be effective,
there is a need of proper knowledge of all involved. Exchanges of
experiences between the countries concerned, discussions with the
Council of Europe and legal advice are essential in this respect.
These efforts require more awareness raising and action by key
national actors. Parliamentarians may push for the rapid
introduction of the necessary legal reforms. Independent state
authorities like ombudsmen have a key role to play due to their
power to control the Administration. Such institutions may inform
the citizens about new laws providing for domestic remedies in cases
of non-enforcement and also push the administration to abide by the
law.
The credibility of the justice system is at stake.It is not
sufficient to reform legislation, increase the resources of the
courts or encourage the public to settle their disputes in court.
Members of the public who have placed their trust in the judicial
system should obtain satisfaction, not only on paper but also in
practice. To ensure full and prompt execution of court decisions is
one of the hallmarks of a democratic society.
Thomas Hammarberg
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Notes:
1.Court judgment 19 March 1997, § 40.
2. See inter alia, Burdov v. Russia (No. 2), 15 January 2009,
§ 70.
3. Documents prepared by the Department for the Execution of Court
Judgments can be found at:
http://www.coe.int/t/dghl/monitoring/execution/default_en.asp
4. Burdov v. Russia (No. 2), op.cit.
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